State v. Hanna

Superior Court of Maine, Cumberland

September 18, 2017

STATE OF MAINEv.WILLIAM E. HANNA, JR. Defendant

ORDER ON MOTION TO SUPPRESS

A. M.
HORTON, JUSTICE

Hearing
on Defendant's Motion to Suppress was held September 14,
2017. The sole witness was Officer Caleb Gray of the South
Portland Police Department, who made the stop that resulted
in the Class D Operating Under the Influence charge that
Defendant faces in this case. A recording of the South
Portland dispatch call during which a dispatcher relayed the
information that formed the basis for the stop was played, on
the record. Officer Gray testified credibly and clearly and
the Court accepts his testimony in all respects.

By
agreement of counsel, the sole issue presented is whether
Officer Gray had a reasonable, articulable suspicion for his
stop of the Defendant's vehicle. Based on Officer
Gray's testimony and the dispatch recording, the court
made findings of fact orally on the record that are
incorporated into this Order.

Officer
Gray, a South Portland police officer, was on duty, in
uniform, operating a marked police cruiser while working the
2 to 11 p.m. shift on February 13, 2017. The usual wintry
weather prevailed, and it either was snowing that night or it
had recently snowed. The stop of Defendant's vehicle was
based on information Officer Gray received from the South
Portland police dispatcher while Officer Gray was on routine
patrol of the city.

An
unknown person had called the 911 emergency line in South
Portland and made a report about a vehicle. The 911 call
itself is not in evidence. A recording of the 911 call
started to be played in court at the State's request but
the State withdrew the request a few seconds into the
recording.[1] However, the gist of the information
conveyed in the call can reasonably be inferred from the
information conveyed by the dispatcher to Officer Gray.

The
dispatcher advised Officer Gray that a "possible OUI
vehicle" being driven by a male who had been seen to
"stumble on Commercial Street" in Portland was
heading across the Casco Bay Bridge into South Portland. The
dispatcher provided the officer with the make, model, color
and license plate number for the vehicle. Officer Gray
spotted the vehicle that had been identified to him traveling
into South Portland and stopped it on Ocean Street, South
Portland. Officer Gray did not see any signs of erratic
operation or indicia of impairment before making the traffic
stop.

Accordingly,
the basis for the stop was the information relayed by the
dispatcher to the officer, based on what the caller had told
the dispatcher. Once the officer had initiated the stop, the
dispatcher informed him that the anonymous caller, who was
still on the line, had followed the vehicle across the bridge
and had witnessed the stop. The dispatcher told Officer Gray
that the caller had confirmed that the vehicle that the
caller had identified was the vehicle that the officer had
stopped.

As the
Law Court has observed, "In order to support a brief
investigatory stop of a motor vehicle ... a police officer
must have an articulable suspicion that criminal conduct or a
civil violation has occurred, is occurring, or is about to
occur, and the officer's suspicion must be
'objectively reasonable in the totality of the
circumstances.'" State v. Brown, 1997 ME
90, ¶5, 694 A.2d 453, quoting State v. Cusack,649 A.2d 16, 18 (Me. 1994).

When
the information relied on for the stop comes from an
anonymous tip, as in this case, the reliability of the tip
becomes a key factor. See State v. LaFond, 2002 ME
122, ¶¶8-9, 802 A.2d 425. The veracity of the
informant who furnishes the tip is often entirely unknown, so
the reliability of the tip has to be measured in large part
by the extent to which the tip is predictive of the
officer's own observations. See id. at ¶ 12
("We . . . sanction reliance on an anonymous tip when
there is subsequent corroboration.")

In
State v. Littlefield, for example, the police
received a tip that a truck of a particular color, make,
model year and registration number was being operated
erratically on a public road. 677 A.2d 1055, 1056. The
officer who investigated found the truck, as described, on
the road predicted. Id. Although the officer did not
observe erratic driving, he saw the vehicle turn into a
driveway at an address other than that to which it was
registered. Id. Based on the subsequent
corroboration of the anonymous tip and the officer's
observation, the Law Court upheld the stop as valid.
Id. at 1058.

Here,
the precise information conveyed by the anonymous caller is
not in evidence, but the information conveyed to the
investigating officer by the dispatcher is--a suspected
"OUI vehicle" of a specified color, make, model and
registration being driven by a man whom the caller had seen
stumbling was crossing the Casco Bay Bridge from Portland
into South Portland. The investigating officer was able to
confirm independently of his own observation that a vehicle
matching the description was traveling as predicted.
Although, as in Littlefield, the officer did not
observe erratic observation, there was substantial
corroboration of the anonymous tip.

As the
Defendant elicited during cross-examination of the officer,
it had been snowing and there was snow and ice on the ground
at the time. Thus, although the caller appears to have
attributed the observed stumble to impairment due to
intoxication, it is possible that the stumble was due to
slippery conditions. However, the officer was in no position
to evaluate the accuracy of the caller's interpretation
of the stumble, and an articulable suspicion does not have to
be correct in order to be reasonable.

Another
element of the case deserves mention as well. The anonymous
caller in this case followed the so-called "OUI
vehicle" across the bridge from Portland. In State
v. McDonald, a case in which an anonymous male provided
a tip about another driver's erratic operation to the
officer in a face-to-face conversation, the Law Court held
that the fact that the officer met with the anonymous tipster
and could well have obtained his name was a factor enhancing
the reliability of the tip. 2010 102, ¶8, 6 A.3d 283.
Here, although there was no face-to-face encounter, the fact
that the caller stayed on the telephone call with the
dispatcher while following the so-called "OUI
vehicle" into South Portland is a factor that enhances
the reliability of the caller's information.

Based
on the foregoing findings and conclusions, the court finds
and concludes that the State has met its burden of persuasion
for purposes of the motion to suppress. The officer's
stop of the Defendant's vehicle was supported by the
officer's actual suspicion of impaired operation and the
anonymous tip was sufficiently reliable, with the ...

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